McCullough, R. v

LORD JUSTICE RICHARDS: On 28 October 2010, at Liverpool Crown Court, after a trial before His Honour Judge Lyon and a jury, Owen McCullough and a co-accused by the name of Thomas Roberts were each convicted on two counts of robbery and two counts of having an offensive weapon. They were each subsequently given a total sentence of five years' detention in a young offender institution. McCullough now appeals against conviction with leave of a single judge.

The circumstances of the offences were as follows. On 15 May 2010 two men, namely Lee Marsland and James Beattie, were pushing their off-road motor cycles along the road when they met Roberts who asked if they wanted to sell the bikes. Marsland expressed interest. They arranged to meet later at The Punch Bowl Public House in Sefton. Later, Marsland and Beattie were in the beer garden of The Punch Bowl having a drink when Roberts and a number of other males arrived in a taxi. Roberts asked to try out the bikes. They went to some waste ground where Marsland and Beattie drove the bikes around. It seems that some of their friends went too with their bikes. One of the friends had a fall and was injured. Marsland was going back towards the friend when someone hit him with what he described as the side of a machete, causing bruising to his eye. He was robbed of his bike. Someone held a knife to Beattie's face, threatening him with violence, as a result of which he let go of his bike. Roberts drove off on it. Roberts subsequently admitted theft but denied robbery. That was the nature of the incident.

The case against the appellant was that he was one of the men involved in the offences to which we have referred. The main issue on the appeal is whether the judge erred in allowing certain identification evidence to be adduced against the appellant at the trial.

A copy of the relevant CCTV footage from The Punch Bowl was obtained by the police. Still photographs were taken from it and shown to police officers. On 26 May an officer who had viewed the stills identified both defendants as appearing on them. The following day a different officer viewing the stills identified the appellant. There is no challenge to those identifications.

Although the appellant was identified as being with Roberts in the public house, there remained the question whether he was involved in the incident when the bikes were taken. He himself did not give evidence at the trial. Roberts did give evidence, in the course of which he said that the appellant was not part of the group that went to look at the bikes. The prosecution case that he was depended entirely on the identification of him by Marsland, one of those whose bikes were stolen. That identification occurred in this way.

Some days after the incident Marsland was given details by a friend of his brother to the effect that what had happened sounded like what the appellant would do, which prompted Marsland, together with his brother and friend, to go on to the Facebook site to look for the appellant. His evidence was that he looked at a photograph of the appellant and also photographs of other individuals and groups of people, but he was satisfied from seeing a photograph of the appellant that the appellant was present at the scene and was involved in the incident and was indeed the person he saw riding the bike away. He subsequently informed the police of this. A formal video identification procedure was arranged. At that procedure Marsland saw videos of nine individuals who included the appellant. He identified the appellant as the person who had been present at the scene.

An application was made on the appellant's behalf at trial for Marsland's identification evidence to be excluded. The judge was satisfied that the evidence was admissible and that it was for the jury to decide what weight to give it. He said that there might have been an issue for the prosecution to deal with if this were the only identification of the appellant in the area. But he pointed to the unchallenged identification evidence of the police officers that the appellant was in the neighbourhood of the incident and was in the company of the co-accused Roberts.

The judge subsequently, and very fairly, allowed the appellant's counsel to explore with Marsland in a voir dire the circumstances of the Facebook search. Marsland was unwilling, however, to divulge details of his brother's friend or of the Facebook account used in order to access the appellant's account and his photograph. So it was not possible to know what was on the particular Facebook page that Marsland said he had seen. There was no print-out, even in redacted form, of the material he said he had seen.

On the appeal the submission advanced by Mr Christie, on behalf of the appellant, and advanced in a succinct and cogent form, is that the judge was wrong to allow Marsland's identification evidence to be adduced. It is said that the Facebook identification was unsatisfactory and unreliable. Indeed, the judge in summing up said the process was not the way in which the police would be happy to have evidence of identification. The further submission is that the Facebook identification contaminated the subsequent identification of the appellant by Marsland in the formal identification procedure.

As to the judge's point in his ruling that there was evidence that the appellant was already in the vicinity, Mr Christie has pointed to a number of factors which he suggests diminish the force of that consideration. First, the evidence was that the assailants arrived in a taxi and walked towards Marsland and Beattie who were waiting in the beer garden. No one claimed to have seen any of them going into the public house, albeit it was acknowledged that Roberts, as well as the appellant, is shown on the photographs taken from the CCTV in the public house. Secondly, shortly after the attack Marsland gave a description of a person subsequently alleged to be the appellant. He described that person as being dressed all in grey, in a matching jogging outfit. But on the photographs taken from the CCTV the appellant can clearly be seen to be wearing a grey top and black trousers. Thirdly, the appellant had obvious scarring to his face and head, such that the scars had been pixelled out of the images used in the formal identification procedure, yet no witness mentioned scarring in the descriptions they gave of the assailants even though they would have been close to him and the lighting would have been excellent.

We have the benefit of a brief written response on behalf of the prosecution, by Mr Owen, in which he submits that none of the points advanced by Mr Christie, as we have described them, provides a viable basis of challenge to the identification evidence. He accepts that the Facebook process was an undesirable way for a suspect to be identified but submits that it is no different from a suspect being pointed out and named by a witness in the street, and the police then being informed, leading to a formal identification procedure. Whether that weakens or supports the formal identification is a decision for the jury. He says of the fact that no one saw anyone go into the public house itself, as the appellant and Roberts clearly did, was another issue of reliability for the jury, as was the difference in description of clothing and the fact that no one had described the facial scarring. The combination of the appellant being at the scene and the friend of Roberts who admitted theft of a motor bike was very compelling evidence, submits Mr Owen.

Mr Christie disputes the analogy with a street identification, pointing out that that is subject to the usual Turnbull checks as to the precise circumstances in which the witness saw and came to identify the relevant defendant. A parallel process, he submits, is not possible here since it is not known what precisely Marsland saw on the Facebook page he says he accessed and neither the page nor the photograph on it were before the jury. He submits that that renders the Facebook identification so unsatisfactory on these particular facts that the judge ought to have excluded it.

No one doubts that the Facebook identification here was far from ideal. Plainly it was capable of having a substantial effect on the weight of Marsland's subsequent identification of the appellant in the formal identification procedure. It seems to us, however, that the various specific points made about weaknesses in the identification process went to weight and were not sufficient to render the identification inadmissible or to call for its exclusion in the interests of fairness. In saying that, we include within the weaknesses the fact that obvious limitations arose out of the nature of the Facebook exercise carried out here and the witness's unwillingness to provide further details about it. It meant that the precise nature of the Facebook entry looked at was not known and that neither the entry nor the particular photograph had been seen by the jury. Despite that, it seems to us that the identification evidence given by Marsland was properly placed before the jury for them to make an appropriate assessment of it. All the weaknesses or deficiencies to which we have referred could be, and no doubt were, drawn to the attention of the jury. They may indeed have worked to the advantage of the appellant, who could make considerable play of them. They did not make it unfair for the identification evidence to be adduced.

We should mention one further point, which is raised in the grounds of appeal though not actively pursued by Mr Christie in his oral submissions. There is a contention that the judge erred in his summing-up in a number of ways, that is by not reminding the jury of the difference in the description of the clothing given by Marsland and the clothing worn by the appellant in the photographs taken from the CCTV, not reminding them that nobody saw the appellant leave the taxi and nobody was mentioned as going into the public house directly from the taxi, and not reminding them that they had heard nothing from the brother's friend who was said to have prompted the Facebook search or indeed about the circumstances of the Facebook identification.

We do not accept that it was necessary for the judge to mention those matters to the jury. As the judge said to the jury when he began the summary of the facts, he did not propose to rehearse all the evidence in the case. Counsel had recently already been through it, and they had heard the evidence over a short period before the summing-up. That consideration made it plainly appropriate for him to concentrate on the main features of the evidence, as he did. So far as the clothing is concerned, we note that the jury did have the photograph from the CCTV for comparison purposes. As to the Facebook search, it was not necessary to remind the jury that they had not heard from the brother's friend or, indeed, about the circumstances of the Facebook identification. Even if the summing-up might have included some further detail on identification evidence, it dealt with the central substance of that evidence perfectly satisfactorily and it included an appropriate warning to the jury, in terms about which no complaint is made, as to the need for care in relation to the identification evidence.

Accordingly there is nothing in that ground of appeal to cast doubt on the safety of the appellant's conviction.

For the reasons we have given, we have reached the conclusion that the appeal against conviction must be dismissed.